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  • Unreported Judgment

R v Rowland

 

[2020] QCA 98

 

[2020] QCA 98

 

COURT OF APPEAL

 

McMURDO JA

BROWN J

RYAN J

 

CA No 358 of 2019

SC No 89 of 2019

 

THE QUEEN

v

ROWLAND, Nathan Jon Applicant

 

BRISBANE

 

MONDAY, 11 MAY 2020

 

JUDGMENT

BROWN J:  The applicant was convicted and sentenced on 9 October 2019 of trafficking in a schedule 1 dangerous drug, namely, methylamphetamine.  The applicant was sentenced to a period of five years with a parole eligibility date after 18 months.

The applicant seeks leave to appeal the sentence imposed only on the basis that the sentence is manifestly excessive, having abandoned the other ground of appeal.

An appeal court will not intervene in relation to a sentence imposed on the basis that it is manifestly excessive except where the difference is such that, in all of the circumstances, the appellate court concludes that there must have been a misapplication of principle even though where and how is not apparent from the statement of reasons (Wong v The Queen (2001) 207 CLR 584 at 605–606).

The applicant was 31 years of age at the time of offending.  He had a relatively minor criminal history and a significant traffic history.  Prior to this sentence, he had not served time in custody.  He had entered a timely plea of guilty.  He had a very good employment history and had his own business.  At the time of sentencing, he had re-partnered, and his partner was pregnant.  He was not a drug addict but attributed his involvement in trafficking, at least initially, to seeking to protect his former partner, who is said to be a drug addict, from dealing with a supplier of methylamphetamine.  That supplier was Paul Geddes.

A number of positive references were presented on his behalf.  The applicant had voluntarily desisted from offending some months prior to being arrested.

The applicant contends that the sentence imposed was manifestly excessive and was likely the result of his Honour placing greater weight on the applicant’s level of offending than was open to his Honour on the material before the Court, namely, that the applicant was above a street-level dealer and involved wholesale dealing on the basis that he was selling ounce and half-ounce quantities.  The applicant contends that the difficulty presented by the schedule of facts was the use of the term “dealing in methylamphetamine”, which seemed to refer to both sourcing and selling the drug.

Counsel for the applicant contends that while it was alleged that the applicant dealt with ounce quantities, the Crown could not prove the applicant had supplied ounce quantities.  The applicant’s counsel submits that he also had informed the Sentencing Judge that his instructions were that the alleged conversations concerning the supply of ounces were not followed through.  In addition, the applicant contends that the use of the words “sold” or “offered to sell” presented difficulties in assessing the true level at which the applicant was actually supplying methylamphetamine to other persons, and whether it was at street level or wholesale level. According to the applicant’s counsel, the reference to “dealt” and “dealing” also had the real potential to distract from the applicant’s criminality in the sense that was discussed by Justice Applegarth in R v Carlisle [2017] QCA 258.

The respondent submitted , however, that the schedule of facts, which was agreed, supported the fact that the applicant conducted a business dealing in methylamphetamine from half balls up to ounces for a period of just under two months; that he both sourced drugs in amounts that were directly supplied to customers, but also in bigger amounts which were broken down into smaller quantities for sale; and that he sold or offered to sell quantities of methylamphetamine at various prices, which included half-ounce and ounce quantities.  The respondent points out that the Crown specifically informed the learned sentencing Judge, that while the evidence disclosed that the applicant had discussed ounce quantities, the Crown could not prove that the supplies actually eventuated.

The applicant did not seek to challenge the schedule of facts, which was admitted, on the basis it was agreed.  Submissions were made on behalf of the applicant that he was not the usual drug dealer because there was none of the usual paraphernalia associated with drug trafficking such as tick sheets, scales or unsourced income associated with his offending.

The applicant’s counsel submitted that while there were discussions in relation to ounces, there was nothing that was actually established, and, on his instructions, nothing ever eventuated from those discussions.  He referred to the fact that such conversations were often matters of bravado.

While that may be so, there is ample support for his Honour’s view that the applicant was a higher-end street and wholesale dealer based on the facts set out in the agreed schedule of facts.  They were matters stated to be facts; not just discussions which could be attributed to bravado, as was submitted by the applicant’s counsel.

The applicant’s offending was detected as a result of his supplies of methylamphetamine from Paul Geddes, who was a target of a police operation into the supply of drugs in the Mackay area.  The applicant’s period of trafficking was some seven weeks.  The evidence of the offending was based on police intercepts.  The schedule of facts revealed that the telecommunication intercepts identified the applicant’s involvement, which showed that he conducted a business of dealing in methylamphetamine from half ball amounts (1.75 grams) up to ounces and that he sourced drugs in amounts that he directly supplied to his customers, but also in larger amounts, which he broke down into smaller amounts to on sell.  That was supported by the reference in the schedule of facts to his selling, or offering to sell, quantities of half balls, balls, half ounces and ounces at varying prices consistent with being an established supplier.  The sourcing of half ounces and ounces is consistent with conducting transactions at a wholesale level.

There was evidence that the applicant had actually supplied methylamphetamine and sourced it in quantities consistent with high-end street level dealing and, on occasion, wholesale dealing.  His Honour referred to the fact that the applicant had informed Mr Geddes that he sold a half ounce to a customer for $4,650, whom he referred to as a “regular one”, suggesting an ongoing relationship with that customer.  In addition, the schedule of facts referred to the fact that the applicant had discussed complaints about the quality of drugs with Mr Geddes, apparently in relation to smaller quantities of drugs rather than the larger amounts.

His Honour referred to the fact that Mr Geddes had, on two occasions, asked the applicant to sell drugs for him, namely, half ball quantities.  On the first occasion, the applicant had subsequently contacted Mr Geddes, confirming he had a customer who wanted to purchase that amount.  On a further occasion, Mr Geddes had also requested the applicant try and sell four balls, which the applicant stated he would make some calls in relation to.  The schedule of facts identified, as his Honour noted, that in another conversation the applicant had sourced two half balls, which were for sale to the same customer, which was inferred from the fact that the applicant and Mr Geddes had discussions about the transaction on the basis it was illogical to buy two half balls since it was more expensive than just buying a ball.  His Honour also noted that, on one occasion, the applicant organised a sale and arranged for a customer to meet Mr Geddes directly to purchase methylamphetamine.

His Honour referred to the fact that while Mr Geddes was the applicant’s primary source, the statement of facts revealed he was not the applicant’s only source.  That was supported by the fact that Mr Geddes had urged the applicant to source a quarter (7 grams) of methylamphetamine from him rather than another source, even though it was more expensive.  The applicant had agreed he would try and convince his customer to use Mr Geddes.

The schedule of facts stated that the applicant had sourced methylamphetamine from Mr Geddes in half ball, ball, quarter, half ounce and ounce quantities.  On one occasion, the applicant had been offered two ounces at a discounted rate of $13,000 by Mr Geddes, in relation to which, he had advised Mr Geddes that he would think about it.  According to the applicant, that transaction was never followed through.  There was no evidence that he ultimately did purchase the two ounces, as was conceded by the Crown.  However, the fact that the conversation occurred did support the fact that the applicant was able to source wholesale quantities.  The schedule of facts also revealed that he had at least on some occasions sourced the methylamphetamine on credit from Geddes.

In addition, as his Honour noted, towards the end of the trafficking period, Mr Geddes had asked the applicant if he would give him $10,000 so Mr Geddes could build up a stock of methylamphetamine.  The schedule of facts states that it was unknown whether that transaction ever occurred.  However, these conversations support the fact that he was regarded as a potential source for the supply of wholesale amounts, as he was regarded as established enough to supply on credit and that his business was regarded as sufficiently profitable to lend $10,000.  While there was no evidence of actual supply at a wholesale level other than on the one occasion referred to, it was open for his Honour to infer that the applicant was engaging at a higher level of trafficking than street level.

Based on the facts contained in the schedule of facts, it was open for his Honour to conclude that the applicant was a high-end street-level dealer and a wholesale dealer, given the transactions that were evidenced by the conversations and the amount of methylamphetamine being sourced by the applicant and offered for sale.  His Honour accepted the facts in the schedule of facts, as it was open for him to do.  The schedule of facts was admitted on the basis that it was agreed.  While the applicant’s counsel informed the Court of his instructions about transactions not coming to fruition and that the conversation about ounces were a matter of “all talk” rather than evidencing transactions per se, the applicant did not challenge the schedule of facts, which was the factual basis of the sentence and contained evidence to support the conclusions of his Honour as to the level of trafficking (in that regard, see the discussion in R v Gerhardt [2019] QCA 283 at [51] to [56]).

His Honour appeared to accept that the applicant had begun dealing with Mr Geddes to avoid his then partner, said to be a drug addict, dealing with him and stated that it was a misguided attempt to protect her from him.  However, as his Honour pointed out, the applicant involved himself in a drug trade to quite a high level, as set out in the schedule of facts.

Based on the facts, which his Honour accepted as the basis of sentence, the cases of R v Connolly [2016] QCA 132 and R v Spark [2018] QCA 231, which the applicant submits support the contention that the appropriate head sentence was three and a half to four years, were less serious examples of offending than in the present case.  Those cases were considered by his Honour together with the cases referred to by the Crown.  His Honour noted that on the basis of the cases put before him, the suggested sentences were as low as three and a half years and up to six years.  His Honour also noted that each case was factually different.

While the period of trafficking in Connolly was for a greater period, namely, four months of trafficking, and in methylamphetamine, MDMA and cannabis, it was accepted that Connolly was generally a street-level dealer who could access wholesale amounts such as an ounce at short notice.  However, the offender was only 19 years of age and had a minor and irrelevant criminal history.  The Court of Appeal reduced his sentence from four years suspended after 12 months to four years suspended after six months in light of the trial Judge proceeding on an error as to the sentence involved in R v Blumke [2015] QCA 264, as well as, the mitigating circumstances in the offender’s favour.  The Court of Appeal particularly noted that the offender was a young offender, who was an addict, and that he had taken significant steps towards his rehabilitation and had promising prospects of rehabilitation.

The sentences of five years imposed in R v Taylor [2005] QCA 379 and R v McAway (2008) 191 A Crim R 475; [2008] QCA 401 for trafficking, which were not set aside on appeal and which were discussed by the Court of Appeal in Connolly, lend some support to the sentence imposed by his Honour in the present case, even though they were for a longer period of trafficking.  Both of those cases related to street-level trafficking or just above by young offenders with no criminal history and with significant rehabilitation, and in McAway’s case, cooperation.

The case of Spark involves street-level dealing for a longer period.  However, there were extenuating circumstances surrounding his fall into offending.  He was a mature offender who had become addicted to methylamphetamine after an acrimonious separation, which resulted in his separation from his children.  He had engaged in trafficking to support his addiction.  He had, like the applicant, otherwise been a productive member of society.  The quantities of drugs were lesser quantities, between half balls up to quarters, than the present case, and he had sold smaller amounts or used them for his own addiction.

In this case, the applicant was not an addict.  While his initial involvement may have been purportedly to protect his ex-partner, he was conducting a commercial operation unexplained by protecting his partner from her supplier, which was clearly a venture for profit.  His Honour took into account the mitigating circumstances in reducing the parole eligibility period to less than a third.

The cases of R v Baradel [2016] QCA 114 and R v Roberts [2018] QCA 239, which were referred to by the Crown, did involve more serious offending than the applicant but resulted in effective head sentences of six years.

While a more lenient sentence could have been imposed in the circumstances of this case, the sentence imposed does not suggest an error of principle in that the sentence was so excessive as to reveal some inherent error in the exercise of his Honour’s discretion.  The learned sentencing Judge had regard to comparable authorities and properly took into account the nature of offending and the mitigating factors.  The sentence imposed was not discordant with the authorities considered so as to indicate error.  General and personal deterrence and the need to denounce drug trafficking at a high-end street level and, on occasion, wholesale level committed by a mature-aged offender were significant factors in the offending.  His Honour took into account the mitigating circumstances and reduced the parole eligibility period below one-third, rather than imposing a suspended sentence.  That was open on the facts before his Honour.  There was no error in the exercise of the sentencing discretion.  The sentence was not manifestly excessive.  I would refuse the application for leave to appeal against the sentence.

McMURDO JA:  I agree.

RYAN J:  I agree.

McMURDO JA:  The order is that the application for leave to appeal against the sentence is refused.

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Editorial Notes

  • Published Case Name:

    R v Rowland

  • Shortened Case Name:

    R v Rowland

  • MNC:

    [2020] QCA 98

  • Court:

    QCA

  • Judge(s):

    McMurdo JA, Brown J, Ryan J

  • Date:

    11 May 2020

Litigation History

No Litigation History

Appeal Status

No Status